This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994) State of Minnesota in Court of Appeals CX-96-22 Curtis Lee Shannon, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed June 25, 1996 Affirmed Huspeni, Judge Mille Lacs County District Court File No. KX 90881 Bradford W. Colbert, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant) Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent) Jennifer A. Fahey, Mille Lacs County Attorney, Jerome E. Mesenbourg, Assistant County Attorney, Mille Lacs County Courthouse, 635 Second Street S.E., Milaca, MN 56353 (for Respondent) Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge. Unpublished Opinion HUSPENI, Judge (Hon. Steven Ruble, District Court Trial Judge) Curtis Lee Shannon challenges the district court's double durational departure in his sentence, arguing that there were no substantial and compelling reasons for it. Because we hold that the conduct surrounding the offense did involve substantial and compelling reasons for departure, we affirm. Facts On September 28, 1990, the police observed Curtis Lee Shannon driving Kathleen Hickerson's car. Because Shannon was known to have a restricted driver license, he was stopped and arrested. When officers went to Hickerson's home to obtain information regarding Shannon's possession of the car, they received no answer to their knocks. They entered the unlocked residence and discovered Hickerson's body. Shannon stated that he entered Hickerson's residence on September 27, 1990, in order to make a telephone call. While he was in her house, a fight began in which a knife was introduced. Shannon alleges that somehow during the struggle he gained control of the knife from Hickerson and inflicted three stab wounds on her, two in the chest area and one in the left hip area. The autopsy report revealed that Hickerson was kicked about the face and head while she lay wounded. In addition, the report showed that Hickerson was much smaller in stature than Shannon. Shannon was charged and indicted on two counts of first-degree murder, two counts of second-degree murder, and theft. On January 25, 1991, Shannon pleaded guilty to second-degree felony murder and stipulated to the facts and evidence constituting the grounds for upward departure, as well as to the departure itself.(1) [Footnote] (1)At the guilty plea hearing, the following colloquy occurred: THE COURT: Now, you understand the plea agreement; that the plea agreement is that the Court would depart upward durationally and that in fact you will be required to serve 300 months? [APPELLANT]: Yes, I do.
We note that in a case decided after appellant was sentenced, the Minnesota Supreme Court held that ``defendants may relinquish their right to be sentenced under the guidelines'' and ``agree to a departure as part of a plea bargain.'' State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). However, because the district court made no inquiry regarding appellant's understanding of the implications of his waiver, we confine this opinion to an analysis of the district court's separate reasons for departure. In return the state dismissed the remaining counts. The district court then sentenced Shannon to 300 months in prison, a double durational departure from the presumptive sentence of 150 months. In June 1995, Shannon filed a petition for postconviction relief, which the district court denied. Decision Generally, in determining whether to depart in sentencing, a district court must decide whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Upward departure is within the sentencing court's discretion only if ``substantial and compelling'' aggravating circumstances are present. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). The guideline sentences are presumed to be appropriate for every case. However, there will be a small number of cases where substantial and compelling aggravating or mitigating factors are present. When such factors are present, the judge may depart from the presumptive disposition or duration provided in the guidelines, and stay or impose a sentence that is deemed to be more appropriate, reasonable, or equitable than the presumptive sentences. Minn. Sent. Guidelines cmt. II.D.01. The district court reasoned that an upward departure was proper because the crime was committed with particular cruelty, Kathleen Hickerson was totally vulnerable, and Shannon abused a trust relationship in committing the crime.(2) [Footnote] (2)The district court also cited Shannon's invasion of the victim's zone of privacy. However, presence in a victim's home with the victim's permission is ``improperly considered as an invasion; however, it could be considered an exploitation of trust.'' State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) , review denied (Minn. May 18, 1988). Because a single substantial and compelling factor is sufficient to sustain a departure, and we find three such factors, we do not address invasion of privacy. A. Cruelty A review of the record indicates that while Hickerson was bleeding to death from at least three stab wounds, Shannon kicked her in the head. Such conduct could reasonably have been taken by the court as evidence of cruelty, thereby providing the grounds for upward departure. See State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981) (stating that cruelty is defined as conduct ``of a kind not usually associated with the commission of the offense in question''). The district court acted within its discretion when it found that the severe beating Hickerson endured following the stabbing made this particular crime more serious than the ordinary offense of this nature. See State v. Jones, 328 N.W.2d 736 (Minn. 1983) (act in leaving victim in a beaten condition and in failing to notify paramedics alone supports determination that crime was committed in particularly cruel way). The district court's decision to depart upwardly because Shannon's conduct was particularly cruel was not an abuse of discretion.
B. Vulnerability Aggravating factors may include the victim's vulnerability due to age and infirmity. Minn. Sent. Guidelines II.D.2b(1). Upward departure is also proper when the defendant takes advantage of a victim particularly vulnerable due to her physical size and strength.(3) [Footnote] (3)Shannon was 16 years old, 6'6'' tall and weighed 169 pounds. Hickerson was 45 years old, 5'3'' tall and weighed 113 pounds. We believe that a knife allows variables such as size and strength to be considered as indicators of the wielder's ability to inflict damage. Given Hickerson's petite stature, we conclude that the district court did not abuse its discretion in determining that vulnerability was an aggravating circumstance. C. Trust Relationship Abuse of a trust relationship between a victim and a perpetrator may be an aggravating factor. State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985). Presence in a victim's home with the victim's permission can be considered ``an exploitation of trust.'' State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988). Hickerson trusted Shannon enough to allow him to enter her house to use the telephone; Shannon exploited that trust. The district court did not abuse its discretion in holding that abuse of a trust relationship was an aggravating factor. We find three substantial and compelling aggravating circumstances for the upward departure in this case. Affirmed.